Evidence of meeting #15 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was minimums.
A recording is available from Parliament.
9:25 p.m.
NDP
Jack Harris NDP St. John's East, NL
Thank you, Chair.
I think both sides have had a good opportunity to talk about the generalities of the mandatory minimums versus the experience elsewhere, and the evidence and representations that these wouldn't be effective. I recognize what an excellent rhetorical job Mr. Woodworth just performed, and I'm sure any judge listening to the most recent intervention—
9:30 p.m.
NDP
Jack Harris NDP St. John's East, NL
I thought he was talking to me as a judge. This does not justify a sentence of a year or more. I thought there would have been modest sentences in the cases Mr. Woodworth was talking about. Surely the impression he gave was that somehow or other these people should go free without the mandatory minimums that are here. I would be inclined to think that any judge hearing that submission to sentence would be very much inclined to treat these matters very seriously indeed, particularly where the offences call for life in prison.
Without going back into the rhetoric that might be called for, I'd like to suggest, Mr. Chair, that you go through some of the amendments and call them so we can deal with them.
There are only six or seven clauses here, and we have a number of amendments. My approach will be to explain the amendments. Most of them are in the context of the minimum sentences and seeking to make some changes there. We're not anticipating that any of them will pass, given the comments we've heard from the other side. Some of them are dependent on fall-back positions if one or the other doesn't pass. It will be relatively easy to explain as we go through what the effect of a particular amendment will be.
There are a couple that we would like to make some comments on, as to why an amendment would go. But for the most part we will be seeking to put the amendment forward and have it voted on relatively quickly
9:30 p.m.
Conservative
The Chair Conservative Dave MacKenzie
Thank you, Mr. Harris. I am certainly prepared to do that.
Within clause 39 there is still one Liberal amendment, L-16.
9:30 p.m.
Conservative
9:30 p.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Thank you, Mr. Chairman.
I have been listening rather patiently to the discussion this evening, and I have to say that I feel it's been a very good discussion. I hope people, if they haven't been watching, will read the text, because there are competing considerations, and this will be a good way to assess those competing considerations.
I will begin my remarks with my amendment. Then I will do as my colleagues have done and speak somewhat generally about the issue of mandatory minimums. I'll try not to repeat anything that has been said, because I've been listening carefully to my colleagues.
With respect to the Controlled Drugs and Substances Act, under subclause 39(1), proposed item 5(3)(a)(ii)(A) authorizes a minimum punishment of two years if “the person committed the offence in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years”. My amendment would add to that “if, at the time the offence was committed, persons under the age of 18 years were present or in the immediate vicinity”.
The purpose of my amendment, Mr. Chairman, is to ensure—and I understand this—that the aggravating factor of committing an offence near a public place usually frequented by persons under 18 only applies if youth were present or were in the immediate vicinity when the offence took place. Otherwise, almost all locations in a city could be implicated. I don't believe this was the initial intention with respect to this particular provision. Indeed, this particular provision may end up, though it is not intended to be, constitutionally suspect because of its over-breadth. I would not wish to see that happen, because I think the vision is important. And I don't think my colleagues opposite would like to see that happen.
Mr. Chairman, if I may, I'll use this occasion to address what all members on both sides have done up to now, which is the issue of mandatory minimums, which underpin the Controlled Drugs and Substances Act. I will address clause 39 in particular. This will be the only time I speak to this issue this evening. It may come up with respect to other amendments, but I'm only going to speak once to the issue and will do so now.
Let me begin by responding to some of Mr. Woodworth's comments, which he made in his remarks, because I think they merit consideration and a response.
He asked whether we are satisfied or not satisfied with what the drug trade has wrought. My answer, simply put, is that I'm not satisfied. He asked whether I, or we, take the position that all drugs should be legalized or that any drug used should not be criminalized. I do not take that position. I happen to be an academic, among other things, Mr. Chairman, but I do not take that position, nor do I believe that all academics take that position.
Mr. Woodworth asked whether the witness testimony he quoted did or did not strike a chord. My answer to him is that I have been there. I know whereof he was speaking. It did strike a chord. I don't think any of us who have been confronted with what he described or what any of us have experienced would be able to be indifferent to it.
Mr. Woodworth said that to say that deterrence sentences are of no value is to be out of touch. Mr. Chairman, I don't say that deterrence sentences are of no value. I say that deterrence is one consideration. I think they have to be seen in the context of what the evidence also tells us about them.
Finally, Mr. Woodworth said that the offences in clause 39 relate to the scourge of organized crime. Organized crime is a scourge. We have to take it seriously. The addressing and redressing of it is important. But not all of the offences relate to organized crime. We have to look at it in that regard as well.
Mr. Chairman, having responded to Mr. Woodworth's questions, I hope, let me now turn more particularly to my whole approach with regard to mandatory minimums.
I want to begin by saying—and I hope you'll indulge me for a moment because I also evolved with regard to mandatory minimums. While I am now critical of mandatory minimums as a matter of principle and policy, I want to say that I did not start that way. In fact, I regarded any opposition to mandatory minimums to be, frankly, counterintuitive. My own sense was that we should support mandatory minimums. That was the beginning of my approach to this.
I believe, as I believe members of the government believe, that serious, I would say consistent, stern offences for all offenders who commit the same crime are an effective deterrent, are an equitable way to approach it, are the appropriate way as a matter of criminal law, policy, and substance. I have to say, Mr. Chairman, I did believe that. I can see reason for believing that. I believe that is very much grounded in an intuitive approach.
But I have to say that after looking into this and examining it, I came to regard mandatory minimums as being suspect from the point of view of principle and policy, if not also constitutional considerations; as being suspect from the point of view of whether one looked at it in terms of crime prevention, which is clearly our overall purpose, or the rehabilitation of the offender, or the protection of the victim, or the protection of public safety, or the cost to the system as a whole.
I have to say that my position evolved from initially being in favour of mandatory minimums for the reasons I mentioned. After considered study of this as a law professor, not as an academic who lives abstracted from the realities on the street, but after looking at it and examining it in disparate jurisdictions, Mr. Chairman, in South Africa, in the United Kingdom, in Australia, in New Zealand, in places I visited, where I met with experts in the field, victims' groups and the like, after prolonged study of this as a kind of street witness and during the period that I was Minister of Justice, because the intuitive sense of the government of which I was a member was that we should have mandatory minimums, at least more than I would have preferred, my position was known.
I felt that some of it was warranted by the government I was a part of, not because of an appreciation of the issue on the merits, though I don't want to impugn anybody, but because there was an intuitive response on their part that somehow if you didn't support mandatory minimums, you would be seen as being soft on crime. It appeared that it was politically important to support mandatory minimums, otherwise you would be accused of being soft on crime, otherwise you would politically suffer for it. I know that colleagues of mine felt that my position, critical of mandatory minimums, might not have been a politically good position. I'm saying that in terms of how we were looking at it at the time, but again I don't want to impugn anybody collectively or any individuals in particular.
Looking at all these specific assessment criteria I did come to the conclusion to be critical of mandatory minimums. Now I want to summarize this entire critique. I will try not to repeat anything that was said, and where I do, I will reference it. I do so in the context that reasonable people can disagree reasonably about what I'm going to say and in terms of what I heard this evening.
As I said, I think this is a good, engaged discussion, and I am prepared to be responsive to what I've heard from the other side. I hope they will be open to this critique that I'm offering. I'm not saying it is conclusive; I'm offering it as part of the argument.
The first thing is that my own appreciation of mandatory minimums is that they do not advance the goal that I thought they did, namely that of crime prevention and deterrence. Part of that, as I said, came from my look at international social science research and evidence. Part of it came from my own experience as minister in the Department of Justice. I came across a document—I think Mr. Harris referred to it—that was originally published in December 1990. It was called “A Framework for Sentencing, Corrections and Conditional Release, Directions for Reform”, Justice Canada 1990. In particular, if you look at page 9 of that report, it says:
...the evidence shows that long periods served in prison increase the chance that the offender will offend again... In the end, public security is diminished rather than increased if we “throw away the key”.
Mr. Harris has made reference to that. I'm making reference to it, in that as Minister of Justice some of the evidence produced by the Department of Justice did have its own impact on my thinking, particularly as it dovetailed with what I was observing or appreciating or studying, not only in the Canadian jurisdiction but in other jurisdictions.
In a moment I will reference a report from the U.S. Sentencing Commission that was released this month, on November 12, which I think is relevant to our approach this evening. That's my first point.
The second point is that mandatory minimums do not necessarily target the most dangerous offenders who will already be subject to very stiff sentences because they have committed the most serious of crimes. Regrettably, Mr. Chairman, more often less culpable offenders may be caught by mandatory sentences and subjected to extremely lengthy terms of imprisonment.
In this regard, let me quote from the report that came out, as I said, in the second week of November. It's a 645-page report from the United States Sentencing Commission. I take what has been said about the differences between Canada and the United States, and I don't make applications in terms of Texas to Canada willy-nilly without knowing the differences, etc. I'm saying that on the issue of principle and policy, what was found with regard to the mandatory minimums...and I will just share it with you for its appreciation.
The Sentencing Commission found that federal mandatory minimum sentences are often “excessively severe”, not “narrowly tailored to apply only to those offenders who warrant such punishment”, and not “applied consistently”. I'm summarizing the report for reasons of time on that particular point.
That leads me now to the third consideration or critique I want to make, which is that mandatory minimums—and we've heard this—have a disproportionate impact on minority groups who already suffer from poverty, deprivation, and disadvantage. In particular, it may prejudicially affect aboriginal communities. Again, this is something I appreciated, not just from the studies but more when I was Minister of Justice, and that is why I made aboriginal justice a priority. I found that aboriginal peoples are overrepresented as inmates in the criminal justice system and underrepresented as judges, law enforcement officers, and the like.
Mr. Chairman, this has a particular application in terms of sentencing principles and the overall approach to the fallout with respect to mandatory minimums and their impact on aboriginal peoples. Accordingly, Mr. Chairman, Criminal Code paragraph 718.2(e) requires that the situation of aboriginal offenders be considered at sentencing. If a less restrictive sanction would adequately protect society, or where the special situation of aboriginal offenders should be recognized, increased sentences and mandatory minimum sentences would tend to conflict with that principle.
The Supreme Court of Canada, in the Gladue case, also recognized that incarceration should generally be used as a penal sanction of last resort and that it may well be less appropriate or useful in the case of aboriginal offenders.
I make that point to conclude this third critique, and that is the disproportionate and prejudicial impact that mandatory minimums may have on vulnerable communities, particularly aboriginals.
This leads me to the fourth critique, which is that mandatory minimums may undermine important aspects of Canada's sentencing regime. Reference has been made to that, and I don't want to belabour this point, but it can undermine principles such as proportionality and individualization and the corresponding reliance on judges to impose a just sentence after hearing all the facts in a particular case.
This leads me to the fifth critique. Let me return, if I may, to the United States Sentencing Commission, which I referred to before, and the manner in which it determined that federal mandatory minimum sentences can be excessively severe and can have a differential impact on those who do not warrant such sentences and the like. This, Mr. Chairman, is especially true...and this is the finding that I want to relate it to. The U.S. Sentencing Commission found...and there were similar results in terms of the Canadian Sentencing Commission. This is especially true in the matter of drug offences, which make up, for example, some 75% of those involved in mandatory minimums. So there's a particular fallout with regard to the genre of offences, and as I said, not all of them are engaged in the matter of organized crime.
Sixth, Mr. Chairman, mandatory minimums have the potential to add an unnecessary complexity to the framework that we now have with respect to our existing sentencing principles and to increase the court time that is required for sentencing hearings.
In other words, Mr. Chairman, we have a kind of double paradox here, almost a dialectic. Fewer accused are likely to plead guilty, adding to current strains on court resources. On the other hand, prosecutors may leverage the fact of mandatory minimums in order to get accused to plead guilty. So it's a kind of pincer movement where they are caught in between precisely because of the underlying premise with regard to mandatory minimums to begin with. Therefore, the bill would often conflict with existing common law and statutory principles of sentencing such that the sentences could end up, however inadvertently, being excessive, harsh, and even unfair, and raise a section 12 Charter consideration, which leads me to the eighth consideration. I'll go quickly to conclude, Mr. Chairman.
The mandatory minimums, for reasons I need not go into, and I think have been referenced, may invite a spectrum of constitutional challenges that will further clog up the courts and further take us away from principles of justice and fairness.
This leads me to the ninth critique, and as the U.S. Sentencing Commission and the Canadian Sentencing Commission have pointed out, inequitable and inconsistent sentencing policies—and this can and very often does result from mandatory minimums—may foster disrespect of and lack of confidence in the criminal justice system, another consideration or variable that I share, which leads to the tenth critique, Mr. Chairman.
At the end of it all, as the evidence has shown, we may end up with a situation in which we will find ourselves incarcerating more people for longer periods of time, thereby aggravating the existing problem of prison overcrowding, which we had even before the legislation was tabled and which may, in and of itself, raise a question of constitutional concern—as it has in the United States and the ruling recently in the United States Supreme Court in the matter of California—with regard to the perspective of cruel and unusual punishment.
The eleventh critique has been mentioned, and I won't mention any more. That is the question of costs.
We have a risk not only of increased or often skyrocketing costs, but also a fallout or impact on federal-provincial relations, where the provinces have to endure the burden of these increased costs by reason of these increased mandatory minimums, and there may not have been the appropriate federal-provincial consultation for that purpose.
Finally, Mr. Chairman, as the U.S. Sentencing Commission and equally Canadian evidence have pointed out, confirming evidence from other jurisdictions I have examined.... The U.S. Sentencing Commission confirms this or reflects other jurisdictions.
The rise in mandatory minimum sentences has damaged the integrity of the justice system, reduced the role of judges in meting out punishment and increased the power of prosecutors beyond their proper roles.
Let me just continue on this point, Mr. Chairman, because that was from an editorial commenting on this U.S. Sentencing Commission report. This editorial came out even before it arrived, as a result of another study that was made in New York on the matter of mandatory minimums. I won't prolong it, but I just want to say that in The New York Times editorial on September 28, 2011, it referred to the fact that
...prosecutors can often compel suspects to plead guilty rather than risk going to trial by threatening to bring more serious charges that carry long mandatory prison terms. In such cases, prosecutors essentially determine punishment in a concealed, unreviewable process—doing what judges are supposed to do in open court, subject to review.
“This dynamic”, the editorial holds—and again, I just throw it out for consideration, not for conclusive appreciation—is yet “another reason”, as they put it,
to repeal mandatory sentencing laws, which have proved disastrous across the country, helping fill up prisons at a ruinous cost. These laws were conceived as a way to provide consistent, stern sentences for all offenders who commit the same crime. But they have made the problem much worse. They have shifted the justice system's attention away from deciding guilt or innocence. In giving prosecutors more leverage, these laws often result in different sentences for different offenders who have committed similar crimes.
It concludes: “These laws have helped fill prisons without increasing public safety. In drug-related crime”, which is what we are addressing right now, Mr. Chairman, “a RAND study found, they are less effective than drug treatment and discretionary sentencing.”
In conclusion, Mr. Chairman, if you look at all the criminal justice organizations that have studied this—both in the United States and in Canada—and focused on this particular issue of mandatory minimum sentences, the general conclusion arising from all these studies is to be critical of, if not to oppose, mandatory minimums.
As I said, Mr. Chairman, I didn't start out that way. I started out in a way not unlike that which members of the government have related to this evening. It may be, because I started out where they are now, that over a period of time I came around to look at it somewhat differently. I don't, for a moment, have any disrespect for the manner in which the government members have put forth their position. I'm just trying to share, from my own experience and study, the perspectives that have led me to be critical of mandatory minimums for the reasons I mentioned.
Thank you, Mr. Chair.
9:55 p.m.
Conservative
The Chair Conservative Dave MacKenzie
Thank you, Mr. Cotler.
We're dealing with clause 39, NDP-4, NDP-6, NDP-7, Liberal-16, and NDP-8.
9:55 p.m.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Is it agreed to put those together, Mr. Chair?
9:55 p.m.
Conservative
The Chair Conservative Dave MacKenzie
No. We'll have a vote on each one. Those are all on the same clause, and that's clause 39.
The question is on amendments NDP-4, NDP-6, NDP-7, and L-16.
(Amendments negatived)
On amendment NDP-8, those in favour—
9:55 p.m.
NDP
Jack Harris NDP St. John's East, NL
I don't think I actually mentioned what that was about, Chair. That's an amendment to the same...because we stopped at Mr. Cotler's amendment.
NDP-8 actually changes this provision, which talks about other public places frequented by youth, because of vagueness, and leaves it to “in or near a school, on or near school grounds”.
Go ahead and vote on it.
9:55 p.m.
Conservative
The Chair Conservative Dave MacKenzie
Thank you, Mr. Harris.
(Amendment negatived)
(Clause 39 agreed to on division)
Now we're at clause 40. We've been sitting for two and a half hours. I'm not sure how much longer we need to go without a short break.
9:55 p.m.
Conservative
9:55 p.m.
NDP
10:08 p.m.
Conservative
The Chair Conservative Dave MacKenzie
We'll call the meeting back to order. We're at clause 40.
(On clause 40)
Mr. Harris, you have two amendments, NDP-9 and NDP-10, and then there's Liberal amendment L-17, and then NDP-11. If you'd like to speak to them and move them....
10:08 p.m.
NDP
Jack Harris NDP St. John's East, NL
Thank you. I'm going to move them and just explain what they do.
Amendment NDP-9 would have the effect of removing cannabis and derivatives from the provisions of clause 40.
Also in clause 40, amendment NDP-10 would have the effect of eliminating the one-year minimums provided for in that clause.
Amendment NDP-11 gets rid of the two-year minimum that's provided for in those clauses. In these cases, NDP-10 replaces the one-year minimum with “liable to imprisonment for life”, and NDP-11 replaces the two-year minimum, leaving it as “liable to imprisonment for life” for the offences that are referred to in clause 40.
10:08 p.m.
Conservative
10:10 p.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
I want to make sure I have the right one here. Yes.
Mr. Chairman, I'm moving that Bill C 10, in clause 40, be amended by replacing line 24 on page 23 with the following:
purposes of trafficking for financial gain,
The purpose of the amendment, Mr. Chairman, is that clause 40 should be amended to specify that the offence of importing or exporting must be committed for the purpose of financial gain. Otherwise, persons who have shared personal drugs with friends could be caught by this provision. So it's a clarifying type of amendment.
10:10 p.m.
Conservative
The Chair Conservative Dave MacKenzie
Thank you, sir.
Seeing no further discussion, we'll vote on amendment NDP-9.
(Amendment negatived)
Amendment NDP-10.
Amendment NDP-10 is carried—
10:10 p.m.
Some hon. members
Oh, oh!
10:10 p.m.
Conservative
10:10 p.m.
Conservative
The Chair Conservative Dave MacKenzie
Everybody but the chair was awake. Sorry about that confusion.
We're at Liberal amendment L-17 now.
(Amendment negatived)
Amendment NDP-11.
(Amendment negatived)
(Clause 40 agreed to on division)
(On clause 41)
